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Fuesting v. Zimmer

January 26, 2009


The opinion of the court was delivered by: Michael P. McCUSKEY Chief Judge


This case is before the court on remand for a new trial. The plaintiff, Arthur W. Fuesting (Fuesting), commenced this action for breach of the implied warranty of merchantability, products liability, and negligence. Fuesting claims that his prosthetic knee joint, manufactured by defendant, Zimmer, Inc. (Zimmer) was defective. He claims that Zimmer's method of sterilization led to severe oxidation and failure of the prosthesis.

After a trial lasting almost five days, a jury returned a verdict in favor of Fuesting, and awarded damages of $650,000. On appeal, the Seventh Circuit reversed and ordered that judgment be entered in favor of Zimmer. Fuesting v. Zimmer, 421 F.3d 528 (7th Cir. 2005) (Fuesting I). The Seventh Circuit later vacated the instruction to enter judgment for Zimmer and ordered a new trial. Fuesting v. Zimmer, 448 F.3d 936 (7th Cir. 2006) (Fuesting II).

Zimmer has now filed a Motion for Summary Judgment. For the following reasons, the motion (#123) is granted.


In 1985, after a number of years of decreasing function in his left knee, Fuesting visited Dr. James McKechnie, an orthopedic surgeon. Dr. McKechnie reviewed Fuesting's x-rays and determined that Fuesting was a good candidate for total knee replacement. Dr. McKechnie performed the surgery in 1985, using Zimmer's Insall Burstein Knee System (I/B knee).

In 1990, Fuesting began to complain of increasing pain in his other knee. In February 1992, Dr. McKechnie performed a total knee replacement on Fuesting's right knee, again using an I/B knee. Post-operatively, Fuesting progressed normally and resumed an active lifestyle. Both I/B knees functioned well. Dr. McKechnie did not see Fuesting between 1994 and 2001.

In 2001, Fuesting again began to experience increasing right knee pain. X-rays taken during that visit showed a stable appearance of the prosthesis with no evidence of loosening. But Fuesting continued to have pain and, in November 2001, Dr. McKechnie removed the right I/B knee. During the surgery, Dr. McKechnie noticed fragments of polyethylene in the surgical area.

Fuesting claims that Zimmer's sterilization of the prosthesis by gamma irradiation in air (GIA) rendered the prosthesis defective. Prior to the first trial, Fuesting proffered the testimony of two witnesses in support of his claim: Dr. McKechnie and Dr. James Pugh. Zimmer filed a motion in limine to exclude Dr. Pugh's testimony on causation and damages, which was denied. At trial, Dr. Pugh testified that GIA caused the prosthesis to oxidize and delaminate, resulting in premature failure. He opined that any knee implant manufactured with the same materials and sterilized using GIA would be defective. Dr. McKechnie concurred with Dr. Pugh's opinion.

In Fuesting I, the Seventh Circuit ruled that Dr. Pugh's testimony did not meet the requirements of Federal Rule of Evidence 702 or the standards set forth in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Fuesting was unable to show defect or causation because there was "absolutely no other evidence in support of those elements." Fuesting I, 421 F.3d at 537. However, in Fuesting II, the Seventh Circuit noted that "there was other evidence in the record supporting Fuesting's claims even after Dr. Pugh's testimony was excluded." Fuesting II, 448 F.3d at 941.

Zimmer has filed a motion to exclude Fuesting's new expert witness, Dr. Robert M. Rose, as well as the expert testimony of Dr. McKechnie. Arguing that Fuesting's experts do not survive the Daubert analysis, Zimmer has moved for summary judgment, to which Fuesting has responded and Zimmer has replied. At a conference on January 21, 2009, the parties were offered the opportunity to bring their experts to court for additional examination prior to trial. The parties declined to do so and stated that they considered the matter fully and properly briefed.


The Seventh Circuit has set out a framework to determine the admissibility of expert testimony -- generally, and specific to this case. See Fuesting I, 421 F.3d at 534-37. The admissibility of expert testimony is governed by Rule 702 and Daubert, 509 U.S. 579. The proponent of the proffered testimony bears the burden to show, by a preponderance of the evidence, that the testimony is both relevant and ...

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